7/31. Sen. Lisa Murkowski (R-AK) introduced
S 1552
[21 pages in PDF], the "Protecting the Rights of Individuals Act", or PRI Act.
This bill contains numerous significant changes to the Foreign Intelligence Surveillance Act
(FISA) and the Criminal Code to limit the powers of government to conduct searches,
seizures, and surveillance. It contains some major rollbacks of provisions added to the FISA
(Title 50) and the Criminal Code (Title 18) by the PATRIOT Act in late 2001.
Sen. Ron Wyden (D-OR) is the cosponsor of
the bill.

The bill includes a large collection of major revisions to the laws regulating
electronic surveillance. The bill would toughen the requirement for obtaining
and pen register and trap and trace orders. It would clarify that pen register
and trap and trace orders cannot be used to obtain the subject lines of e-mail
messages or any portion of a uniform resource locator (URL) beyond the top level domain.
It would raise the
standard for obtaining a FISA order from "a significant purpose" of the
surveillance must be foreign intelligence gathering, to "the primary purpose". It would
eliminate "John Doe" roving wiretaps. It would restrict the circumstances under
which the government may delay giving notice of the issuance of a search
warrant. It would restrict the government's access to business records under the FISA.
It would provide that the FBI's access to the toll billing records and
electronic communication transactional records of a "electronic communications
service provider" does not apply to libraries. And, it would impose a moratorium
on government data mining.

The bill is limited in that it focuses on the search, seizure and
surveillance provisions of law that were amended by the PATRIOT Act, and
especially those pertaining to electronic surveillance. S 1552 does not address
other areas of law amended by the PATRIOT Act, such as those pertaining to biological weapons,
border protection, terrorist financing infrastructure, and immigration and
alien detention and deportation.

Supporters of the bill have characterized the bill as "some modest
checks and balances" and "a prudent, mid-course correction" of
the PATRIOT Act.

Steve Lilienthal of the Free Congress
Foundation (FCF) stated in a release that "Conservatives who care about
preserving our constitutional liberties and
protecting privacy will find the Protecting the Rights of Individuals Act to
their liking. It is a necessary and prudent rewrite of the USA-Patriot Act that
demonstrates respect for the need of Federal law enforcement to have enhanced
powers to fight the War on Terrorism while providing the necessary safeguards to
protect the constitutional liberties and privacy of American citizens."

Jill Farrell of the FCF stated that "It offers a prudent, mid-course
correction of the USA-Patriot
Act. Now, after nearly two years of having had the USA-Patriot Act on the books,
thoughtful conservatives are taking a needed second look at what Congress passed
so hastily. In the heated "do something" atmosphere after September 11th,
legislators were not provided with enough time to read and understand the
legislation that they were voting on. PRI brings some accountability to law
enforcement and provides some protection to citizens."

Ari Schwartz of the Center for Democracy and Technology
(CDT) stated in a release
that the bill "would place some modest checks and balances on the most
troublesome provisions of the USA PATRIOT Act. Cosponsored by Sen. Ron Wyden
(D-OR), the legislation's ten provisions leave in place expanded law enforcement
and intelligence powers granted by the PATRIOT Act, but ensure that privacy and
other civil liberties will be better protected when the FBI and other agencies
exercise those powers.

Schwartz stated that the bill would "guarantee that Americans' homes will not
be searched in secret unless necessary", "limit the FBI's ability to look at
sensitive, personal information,
including medical, library and Internet records, without demonstrating specific
suspicion to a judge", and "increase judicial review for some telephone and
Internet monitoring".

Sen.
Lisa Murkowski (at right) is a freshman Senator. Former Sen. Frank Murkowski
(R-AK) represented Alaska in the Senate from 1980 until his election as Governor
of Alaska in November of 2002. This left his seat in the Senate vacant. Under
Alaska law, the Governor has authority to appoint a replacement to a vacant
Senate seat. So, as Governor, he appointed Lisa Murkowski, his daughter, to
serve the remaining two years of his term. At the time, Lisa Murkowski was a third term
legislator in the Alaska state House. Moreover, she had just been elected
House Majority Leader. She previously practiced law in Anchorage, Alaska.

There are already several Senate Democrats who have actively advocated
restraint of law enforcement authority in the name of individual liberties,
including Sen. Russ Feingold (D-WI),
Sen. Ron Wyden (D-OR), and
Sen. Patrick Leahy (D-VT). Also, there
have been several civil liberties proponents in the House -- notably former Rep.
Bob Barr (R-GA), who lost his seat in 2002.

Sen. Murkowski's introduction of this bill may indicate the emergence of a
Republican advocate of civil liberties in debates over the appropriate scope of
government search, seizure and surveillance authority in the fight against
terrorism.

Bob Barr, who now works for the American Conservative Union Foundation's 21st
Century Privacy and Freedom Center, stated in a
release that
"Sen. Murkowski is leading the charge in the U.S. Senate to create sound public
policy that will assist law enforcement and simultaneously preserve the privacy
and civil liberties of law-abiding Americans."

She is also taking positions opposed by the federal law enforcement, intelligence
and homeland security agencies. And, she is taking positions opposed by the Bush
administration, and most senior Senate Republicans.

Section 1: Title. Section 1 of the bill only states the title of the bill,
the "Protecting the Rights of Individuals Act". It is also referred
to by some as the PRI Act.

Section 2: Delay of Notice of Search Warrants. Section 2 of the bill amends
18 U.S.C. § 3103a. This section, which was
amended by the PATRIOT Act, lists circumstances under which the government may
delay giving notice of the issuance of a search warrant. S 1552 narrows the
circumstances, and adds a new requirement that the Attorney General prepare a
semi-annual report for the Congress and the public regarding requests for delays
of notice.

Section 3: Definition of Domestic Terrorism. Section 3 of the bill amends
18 U.S.C. § 2331(5). This subsection, which was
amended by the PATRIOT Act, provides a definition of the term "domestic terrorism".
S 1552 narrows the definition to encompass less conduct. Currently, the statute
defines "domestic terrorism" as follows:

"activities that --
(A) involve acts dangerous to human life that are a violation of the criminal
laws of the United States or of any State; (B) appear to be intended --
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion;
or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States."

This is significant because this latter definition enumerates a list of specific
federal crimes or classes of crimes, while the current statute encompasses all
"criminal laws". The law, as currently written, hypothetically, is susceptible to
abuse by malicious government officials who might categorize as "domestic
terrorism" acts that, while illegal and intimidating, are essentially political
protest or activism.

Section 4a: Business Records. Section 4a amends the FISA, at 50 U.S.C. § 1861,
to limit access to business records under the FISA.

Section 4b: FBI Access to Telephone Toll and Transactional
Records. Section 4b amends 18 U.S.C. § 2709. This section, which was
amended by the PATRIOT Act, covers "counterintelligence access to telephone toll
and transactional records". The statute provides that "A wire or electronic
communications service provider shall comply with a request for subscriber
information and toll billing records information, or electronic communication
transactional records in its custody or possession made by the Director ..." of
the FBI. S 1552 would add that "A library shall not be treated as a wire or
electronic communication service provider for purposes of this section."

Section 6: Pen Register and Trap and Trace Authority. The current requirement
for the issuance of a pen register or
trap and trace order is merely that "the attorney for the Government has
certified to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation".
Section 6 would change this standard to "the court shall enter an ex parte order
... if the court finds that there exist specific and articulable
facts that reasonably indicate that a crime has been, is being, or
will be committed, and that information likely to be obtained by such
installation and use is relevant to the investigation of that crime."

Section 6 would also clarify that "the contents of Internet
electronic communications include the subject line of such communications and
any portion of a Uniform Resource Identifier (URI) other than the server name
and top level domain", and thus cannot be obtained by the government with a pen
register or trap and trace order.

Section 7: Moratorium on Data Mining. Section 7 provides
that "No officer or employee of any
department or agency of the Federal Government may take any action to implement
or carry out any data-mining program or activity except pursuant to a law
specifically authorizing such data-mining program or activity by such department
or agency." This section might prohibit, for example, continuation of the
Total Information Awareness (TIA) project without Congressional legislation
approving the project.

Section 8: Expansion of Reporting FISA Reporting Requirement. Section
8 expands the public reporting requirement under the FISA. The current
requirement is very minimal, and reveals little about FISA orders or the FISA
process.

Section 9: Discovery. Section 9 amends the FISA regarding the
applications of discovery procedures to evidence used in court proceedings.

Section 10: FISA Standard. Section 10 is only one sentence long. It
provides that "Sections 104(a)(7)(B) and 303(a)(7)(B) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B)) are each
amended by striking ``a significant purpose´´ and inserting ``the primary
purpose´´." Its impact is large. This changes the standard that the government
must meet to obtain a FISA order.

The change proposed by S 1552 would make it harder for the the government to
obtain FISA warrants. Moreover, since some FISA investigations regarding foreign
intelligence uncover evidence of domestic crimes, which result in domestic
prosecutions, tightening the standards may decrease the number of domestic
criminal cases brought based upon evidence obtained under as FISA order, rather
than an Title III order based upon probable cause.

And under a more cynical analysis, the heightened standard of S 1552 would
make it harder for the government to avoid the stringent requirements for
issuance of a Title
III order, by obtaining a FISA order on the pretext that it is for foreign
intelligence purposes, but then actually using the evidence collected for
prosecutorial purposes, thereby evading the Fourth Amendment protections against
unreasonable searches and seizures that the Title III process is intended to
protect.

Section 11: Educational Records. Section 11 increases the showing that
must be made by the government to obtain educational records.

Sen. Feingold stated that "The untested and controversial intelligence
procedure known as data-mining is capable of maintaining extensive files
containing both public and private records on each and every American. Almost
weekly, we learn about a new data-mining program under development like the
newly named Terrorism Information Awareness program. Congress should not be
learning the details about these programs after millions of dollars are spent
testing and using data-mining against unsuspecting Americans." See,
Congressional Record, July 31, 2003, at S10672.

He explained that "My bill would require all Federal agencies to report to
Congress within 90 days and every year thereafter on data-mining programs used
to find a pattern indicating terrorist or other criminal activity and how these
programs implicate the civil liberties and privacy of all Americans. If it was
necessary, information in the various reports would even be classified." He
added that "The bill does not end funding for any program, determine the rules
for use of the technology or threaten any on-going investigation that uses
data-mining technology."

The bill provides that "The head of each department or agency of the Federal
Government that is engaged in any activity to use or develop data-mining
technology shall each submit to Congress a report on all such activities of the
department or agency under the jurisdiction of that official."

This report must include,

"(1) A thorough description of the data-mining technology.
(2) A thorough discussion of the plans for the use of such
technology and the target dates for the deployment of the data-mining
technology.
(3) An assessment of the likely efficacy of the data-mining
technology in providing accurate and valuable information consistent with the
stated plans for the use of the technology.
(4) An assessment of the likely impact of the implementation of
the data-mining technology on privacy and civil liberties.
(5) A list of the laws and regulations that govern the
information to be collected, reviewed, gathered, and analyzed with the
data-mining technology and a description of any modifications of such laws that
will be required to use the information in the manner proposed under such
program.
(6) A thorough discussion of the policies, procedures, and
guidelines that are to be developed and applied in the use of such technology
for data-mining in order to -- (A) protect the privacy rights of individuals; and
(B) ensure that only accurate information is collected and used."

The bill does not contain a definition of data mining.

The PATRIOT Act and the Murkowski Bill: An
Analysis of Rules for Issuance of Electronic Surveillance Orders

7/31. There are three main types of court orders authorizing electronic surveillance.
Each applies to a particular category of surveillance, and each has its own
standard for issuance. That is, there are (1) wiretap orders, (2) pen registers and trap and
trace device orders, and (3) Foreign Intelligence Surveillance Act (FISA)
orders.

A wiretap order, which enables law enforcement agencies to obtain the content
of a phone call or e-mail, is issued by a judge upon a showing of probable
cause. This is often referred to as a Title III order. This is a very high
standard.

In contrast, there is a much lower standard for obtaining pen register and
trap and trace orders, which merely obtain outgoing and incoming phone numbers,
and since passage of the PATRIOT Act, e-mail addressing and routing information.
Under the current statute, the order must be issued if the government asserts
mere relevance to a criminal investigation; the judge has no discretion. The
Supreme Court has upheld this
procedure on the basis that only phone numbers are obtained.

Finally, there is a separate, and low, standard for FISA orders. Under current
law, a significant purpose of the surveillance must be foreign intelligence
gathering. FISA orders are not available in criminal investigations.

The PATRIOT Act, which was passed quickly in late 2001 in the aftermath of
the September 11 terrorist attacks, made some changes to this structure, both
regarding what acts
of surveillance fall into which of these three categories, and regarding the
standards for issuance of an order in each category.

The statutes for wiretaps and pen register and trap and trace orders were
drafted with analog Public Switched Telephone Network (PSTN) voice service in mind.
Originally, 18 U.S.C. § 3127 provided that a pen register records the numbers
that are dialed or punched into a telephone, while a trap and trace device
captures the incoming electronic or other impulses which identify the
originating number of an instrument or device from which a wire or electronic
communication was transmitted. The PATRIOT Act expanded the scope
of surveillance under pen register and trap and trace authority to include
internet routing and addressing information. That is, an e-mail address in the
"To:" line of an e-mail message is somewhat analogous to the number dialed
in a PSTN voice call. However, this expanded authority also applies to new
technologies for collecting addressing and routing information, such as the
FBI's Carnivore system.

The PATRIOT Act did not change the standard for either wiretaps (a showing of probable
cause) or pen register or trap and trace orders (an assertion of mere relevance to a criminal
investigation). It did, however, lower the standard for issuance of a FISA order. The
statute required that the "primary purpose" of the surveillance be foreign intelligence
gathering.
The PATRIOT Act changed this to "a significant purpose". The PATRIOT
Act made it easier for the government to get a FISA order. This was a thoroughly debated issue in
late 2001.

Sen. Murkowski's bill, S 1552, would also makes changes to both categorization, and standards for
issuance of orders.

First, it addresses what internet communications are subject to pen register
and trap and trace orders, and what falls under wiretap orders. It provides that
"the contents of Internet electronic communications include the subject line of
such communications and any portion of a Uniform Resource Identifier (URI) other
than the server name and top level domain." That is, what is typed into the
"Subject:" line of an e-mail message cannot be captured by the
government pursuant to a pen register or
trap and trace order. It would require a wiretap order. Similarly, a pen register
and trap and trap order can be
used to obtain the website that one visits, but not the actual page within that
website, or other information that is appended to the URI, such as search terms.
Technically, this is not either an expansion or
contraction, because the PATRIOT Act is silent on these two items.

However, there was debate on this in 2001. During the
House Judiciary Committee's mark
up of the PATRIOT Act on October 3, 2002,
Rep. Bob Goodlatte (R-VA) and
Rep. Rick Boucher (D-VA) proposed
and discussed an amendment that would have clarified the information that could
be collected under pen register and trap and trace orders. Their proposal was as
follows: "In Section 101, strike ``(but not including the contents of such
communication)´´ each place it appears and insert ``(but not including in
formation that reveals the subject matter of electronic communications,
information identifying files or web pages accessed over the Internet (beyond
the host name), or other contents of communications)´´. In Section 101, on page
5, line 3, by inserting after ``(but not including information that reveals the
subject matter of electronic communications, information identifying files or
web pages accessed over the Internet (beyond the host name), or other contents
of communications)´´ after ``communications.´´" (Parentheses in original.)

However, Rep. Goodlatte and Rep. Boucher did not actually offer this amendment.
Hence, it was neither
approved, nor rejected. They settled for language in House Judiciary Committee
report, House
Report 107-236, on this point. (This report states that "an order under
the statute could not authorize the collection of
email subject lines, which are clearly content. Further, an order could not be
used to collect information other than `dialing, routing, addressing, and
signaling' information, such as the the portion of a URL (Uniform Resource
Locator) specifying Web search terms or the name of a requested file or article.")
Had the Goodlatte Boucher amendment been adopted, it would have accomplished the same
objectives as S 1552.

Second, S 1552 changes the standards for issuance of both pen register and
trap and trace orders and FISA orders.

S 1552 would change the standard for a FISA order to "the primary
purpose" must be foreign intelligence. The PATRIOT Act lowered the
standard to "a significant purpose". Hence, S 1522 makes it harder for the
government to obtain a FISA order.

S 1552 would also change the standard for issuance of a pen register and trap
and trace order. The current requirement is merely that "the attorney for the Government has
certified to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation". A
judge must issue an order if the attorney for the government makes the requisite
assertion.

S 1552 would change this standard to "the court shall enter" an order "if
the court finds that there exist specific and articulable facts that reasonably
indicate that a crime has been, is being, or
will be committed, and that information likely to be obtained by such
installation and use is relevant to the investigation of that crime." Thus,
S 1552 makes three changes. First, the court must make a finding, and not rely
on the government's assertion. Second, the government will have to identify not
just a criminal investigation, but also specify what crime is involved. Third,
the court will have to find the there are facts that indicate that that crime
was or will be committed. This standard is much more demanding than the current
standard, will is essentail a "rumber stamp" standard. Hence,
S 1522 makes it harder for the government to
obtain a pen register or trap and trace order.

Also, it is notable that the change in the standard for issuance of a pen
register and trap and trace order is not a
rollback of the PATRIOT Act. The PATRIOT Act did not alter the standard for pen
register and trap and trace orders that had been in effect for years. S 1552
thus toughens a standard that pre-dates the PATRIOT Act. The existing standard
dates back to 1986.

Wednesday, August 6

The House is in recess until September 3. Senate is in recess until
September 2. The Supreme Court is in recess.

Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its
Notice of Inquiry [21 pages in PDF] in its proceeding titled "In the Matter
of Inquiry Regarding Carrier Current
Systems, including Broadband over Power Line Systems". See,
notice in the Federal Register, May 23, 2003, Vol. 68, No. 100, at Pages 28182 - 28186.
See also, story titled "FCC Announces NOI Regarding Broadband Over Powerlines"
in TLJ Daily E-Mail Alert No. 628, April 24, 2003, and story titled "FCC
Releases NOI on Broadband Over Power Lines" in TLJ Daily E-Mail Alert No. 656,
May 7, 2003.This is ET Docket No. 03-104. For more information, contact Anh Wride at 202
418-0577 or anh.wride@fcc.gov.

Deadline to submit comments to the Federal
Communications Commision (FCC) in response to its
notice of proposed rulemaking (NPRM) [7 pages in PDF] regarding the
draft Nationwide Agreement [28 pages in PDF] of the FCC, the Advisory
Council on Historic Preservation, and the National Conference of State
Historic Preservation Officers, regarding undertakings for communications
facilities, including communications towers and antennas, under the
National Historic Preservation Act (NHPA). This proceeding is titled "In the
matter of Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process". It is WT Docket No. 03-128. For
more information, contact Frank Stilwell at 202 418-1892 or
fstilwel@fcc.gov. See, story titled
"FCC Announces NPRM Regarding Communications Facilities and the National
Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003.
See also,
notice in the Federal Register, July 9, 2003, Vol. 68, No. 131, at Pages
40876 - 40887.

Deadline to submit comments, or requests to speak at the September 2, 2003
public hearing, on the Treasury Department's
and the Internal Revenue Service's (IRS) notice of
proposed rulemaking (NPRM)
regarding regulations that "affect certain taxpayers who participate in the
transfer of stock pursuant to the exercise of incentive stock options and the
exercise of options granted pursuant to an employee stock purchase plan
(statutory options)." See,
notice in the Federal Register, June 9, 2003, Vol. 68, No. 110, at Pages 34344 - 34370.

8/5. The Federal Communications Commission
(FCC) published a
notice in the Federal Register that recites and describes the changes to its
media ownership rules, announced on June 2, 2003. The rules changes take effect
on September 4, 2003. See, Federal Register, August 5, 2003, Vol. 68, No. 150,
at Pages 46285 - 46358.

8/5. Nancy Victory, Director of the Department of Commerce's
National Telecommunications and Information
Administration (NTIA) submitted a
comment to the Federal Communications
Commission (FCC) in its proceedings titled "International Settlements Policy
Reform", IB Docket No. 02-324, and "International Settlement Rates", IB Docket
No. 96-261. She wrote that "The Commission currently has before it a proceeding
to re-examine the international settlements policy (ISP) and associated
benchmarks, and to inquire as to whether foreign mobile termination rates may be
adversely affecting U.S. consumers and the market for U.S.-international
services. Given recent trends towards increasing international fixed line
termination rates above market prices, and intensifying international
discussions on whether a cost-oriented scheme should be developed for
international mobile rates, the Commission’s proceeding comes at a critical
juncture and its decisions will have a significant impact on the international
telecommunications marketplace. I write to urge the Commission to retain the ISP
and associated benchmarks in a modified form, and to adopt a position of
cost-orientation for international mobile rates to ensure the continued support
of U.S. consumer and business interests."

7/31. Sen. Ron Wyden (D-OR) and
Sen. Byron Dorgan (D-ND) released a
statement on the resignation of John Poindexter as Director of the
Terrorism Information Awareness (TIA) program
of the Department of Defense's (DOD) Defense
Advanced Research Projects Agency (DARPA). The wrote that "As Congress
contemplates the future of the Terrorism Information Awareness Program after the
resignation of Dr. Poindexter, we want to make one point clear: even with
today’s announcement, the proposed TIA program would still be the biggest spying
and surveillance overreach in America’s history, and it should be shut down.
Congress will have the opportunity to do just that in the conference for the
defense appropriations bill in the fall and we hope to see this program
de-funded once and for all. We have always believed that it is possible to fight
terrorism vigorously without gutting civil liberties. The TIA program skews that
balance and needs to go."

8/1. Linton Wells, Principal Deputy Assistant Secretary of Defense for
Networks and Information Integration, gave a briefing in Washington DC regarding
the work of the U.S. Agency for International Development (USAID) and Bechtel on
upgrading Iraq's telecommunications and information infrastructure. See,
transcript.

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